Citation Nr: 1704529
Decision Date: 02/15/17 Archive Date: 02/24/17
DOCKET NO. 13-15 323 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana
THE ISSUE
Entitlement to service connection for vision impairment, to include as secondary to service-connected diabetes mellitus, type II.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Smith-Jennings, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1968 to November 1973.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.
The Board notes that the Veteran also filed claims to reopen his previously denied claims for service connection for bilateral hearing loss and tinnitus. The RO furnished a statement of the case on these issues in October 2011. However, the Veteran did not perfect an appeal as to these issues. Therefore, these issues are not before the Board.
FINDING OF FACT
The most competent and probative evidence of record shows that the Veteran experiences blurred vision and tunnel vision related to ocular migraines. He does not have a formally diagnosed vision impairment disorder for which service connection may be granted.
CONCLUSION OF LAW
The criteria for service connection for vision impairment, to include as secondary to diabetes mellitus, type II are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. VA's Duties to Notify and Assist
VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015).
Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO provided adequate notice in a December 2010 letter.
With regard to VA's duty to assist in the development of a claim, VA must assist a claimant in obtaining service treatment records (STRs) and other relevant records identified by the claimant. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(3). Pursuant to this duty, VA associated with the Veteran's claims file his STRs, VA treatment records, and records of his relevant private treatment.
Coincident to VA's duty to assist the Veteran in substantiating his claim, VA must also provide an examination or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA provided an adequate medical examination in January 2011.
The Board finds that no further notice or assistance to the Veteran is required for a fair adjudication of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Thus, all necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
II. Service Connection for Vision Impairment
The Veteran is seeking service connection for impaired vision. Specifically, the Veteran contends that he has bilateral vision impairment, described as blind spots in both eyes, as a result of his service connected type II diabetes mellitus disability.
Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015).
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Additionally, service connection may be established on a secondary basis for a disability which was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2015); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
With respect to service connection for disorders of the eye, the Board notes that refractive error of the eyes is not a disability for VA purposes. Accordingly, such a disorder cannot be service-connected, absent evidence of aggravation by superimposed disease or injury. See 38 C.F.R. §§ 3.303(c), 4.9 (2016); Sabonis v. Brown, 6 Vet. App. 426 (1994). See also Monroe v. Brown, 4 Vet. App. 513, 514-515 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 82-90 (July 18, 1990); and VAOPGCPREC 11-1999 (Sept. 2, 1999). This includes refractive error due to such eye disorders as myopia, presbyopia and astigmatism.
Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C.A. § 5107(b) (West 2014); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge).
Here, although the evidence reflects that the Veteran has complained of problems with his vision, the evidence of record is absent any current diagnosis of bilateral vision impairment for which service connection may be granted, or of any residuals related to an eye injury.
The Veteran's service treatment records show that in October 1973 he sought treatment for complaints of blurred vision associated with dizziness and weakness. Ophthalmologic evaluation revealed no evidence of refractive error, and no prescription was recommended. The examining clinician noted that the patient was better, and that the complaint was probably due to a virus the week before. The remainder of the Veteran's service treatment records is negative for any evidence of eye-related complaints.
Post-service clinical records show that the Veteran has been treated for refractive error but no other eye disorders.
In January 2004, the Veteran was hospitalized after seeking medical treatment for feeling off balance for the previous two weeks, with a single-day history of diplopia, then resolved, but with some blurred vision remaining. Medical evaluation was suggestive of a neurologic event which was felt to be an embolic stroke. MRI of the brain showed right cerebellar infarct in the distribution of pica. No visual field defects were identified, nor nystagmus observed, and no eye disorder was diagnosed.
On VA examination for diabetes mellitus in July 2010, the examiner listed the Veteran's visual complaints as consisting of corrected visual acuity only. Examination of the eyes was normal.
In September 2010, the Veteran underwent an eye consultation after complaining that he was seeing dark spots, lightning, and circles. Ocular examination showed no evidence of diabetic retinopathy or cotton-spot macular edema; he was not diagnosed with any bilateral vision impairment. Examination results otherwise showed that his vision was correctable to 20/20 in both eyes. His vision complaints were related to ocular migraines, worse in the left eye than in the right.
A January 2011 report of VA examination documents the Veteran's complaints of vision blurring and tunnel vision which he felt was related to blood sugar changes. However, the VA examiner reported that the Veteran did not have bilateral vision impairment, including diabetic retinopathy, and examination results confirmed that the Veteran's vision was correctable to 20/20 both at a distance and near in both eyes. The VA examiner opined that the Veteran's complaint of blurred vision/tunnel vision is most likely related to ocular migraines which are not caused by diabetes. In summary, the examiner concluded that the Veteran did not suffer from any ocular impairment. As the VA examiner's opinion was based on review of the claims file and examination of the Veteran, and included a rationale for the conclusion reached, the Board finds this opinion to be highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). There is no medical opinion of record to the contrary.
The Board acknowledges the Veteran's complaints related to his vision, and recognizes that the Veteran is competent to describe symptoms he experienced based on his personal knowledge. Layno, 6 Vet. App. at 470. However, the issue of whether the Veteran has an eye disorder for which service connection may be granted, including residuals of an eye injury, is a complex medical issue which the Veteran is not competent to address. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
Based on the foregoing, the Board finds that the preponderance of the evidence is against granting service connection for residuals of an eye injury, to include as secondary to service-connected type II diabetes mellitus, because evidence of a current disability for which service connection may be granted is necessary before direct or secondary service connection may be considered and in this case there is no evidence of a current eye disability as defined by VA. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury where such incidents have resulted in a disability...In the absence of proof of a present disability there can be no valid claim.") Thus, the appeal must be denied; there is no doubt to be resolved. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 49 (1990).
In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56.
The Veteran has not established that he has a current disability, so the Board finds that it need not further address the other requirements of service connection (in-service incurrence or aggravation of a disease of injury, or nexus between the claimed in-service disease or injury and the current disability.)
ORDER
Service connection for residuals of an eye injury, to include as secondary to diabetes mellitus, type II, is denied.
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S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs